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Notice to readers of my Kindle book:I recently noticed that, on certain devices (though not all), the Table of Contents begins with Chapter One and omits the Introduction and Preface. Since the Introduction is especially important, I urge everyone to make sure to begin reading at the very beginning of the book, not the first chapter in the Table of Contents. Thank you.

Monday, September 3, 2012

The Defense

If the case ever comes to trial, the defendant will be John Ramsey. Patsy Ramsey is no longer with us. Burke Ramsey was too young at the time and cannot be tried. As far as an "intruder" is concerned, even in the event of a DNA match the suspect's lawyer would have no trouble getting the case tossed out of court by challenging the prosecution to explain that person's motive for murdering an innocent child, how he could have entered the premises through locked doors, leaving no sign of forced entry, his reasons for writing a long "ransom" note while in the house, using paper and pen from within the house, his reasons for hiding the body in a remote room rather than taking and holding it for ransom, etc. Even in the unlikely event of a handwriting "match," his lawyer could challenge such results as unscientific, on the same basis the Ramseys themselves challenged the "experts" who matched Patsy's writing to that of the note in the Wolf case. And thanks to John Mark Karr, we've learned that even a confession is, in itself, all but worthless.

Well, you might say, what if Patsy was the one who did it, and John was just an innocent bystander, wouldn't it be unfair to put him on trial for what she did? This seems to be the position of detective Steve Thomas, who gave John a "pass," despite clear evidence of sexual assault. For Thomas, the assault was most likely part of Patsy's staging effort -- after killing her daughter "accidentally" with a blow to the head, she allegedly penetrated her daughter's vagina with a paint brush handle, to cover for herself by staging a sexual assault followed by a brutal "garotte" strangulation. According to detective James Kolar, the blow and possibly also the sexual attack most likely came from JonBenet's older brother, Burke, with Patsy responsible for the strangling and the note. So, if prosecutors attempted to indict John, would he point to Patsy and/or Burke as the real culprits, claiming he was only trying to protect the "family honor" by lawyering up and lying about who did what? After all, as Kolar reminds us, the statute of limitations on accessory after the fact has run out.

I feel sure John would not attempt a defense of that sort. For one thing, he'd have to deal with the humiliation of admitting that for all these years he's been a liar and a fraud, far from the Job-like victim he's been at such pains to portray. For another, his lawyers would realize how preposterous and self-serving such a defense would sound. The evidence of sexual assault strongly suggests a mature male attacker, not a loving mother or a nine year old child. A distraught mother might possibly kill her daughter, as might a jealous brother kill his sister. But the notion that a sexual assault and garrote strangulation would be used to cover up a head injury that could be explained as an accident; or that a nine year old boy preoccupied with Nintendo would be involved in a sexual relationship with his six year old sister . . . that's part of the folklore of this case, but not the sort of thing you'd want to allege in a court of law. Prosecutors pray for that sort of lame defense, one step removed from "the dog ate my homework." Could of happened that way, sure -- but not likely, sorry, come up with something believable.

[Added 9-4-12: If backed against the wall with no other option, John could, of course, try to plea bargain with the prosecutor for a lighter sentence in return for information regarding either Patsy's or Burke's culpability in the murder and/or coverup. To be successful, he'd need to present convincing evidence and a convincing account as eyewitness. As should go without saying, his version of what happened would have to be corroborated by his son, Burke, who might or might not be willing to cooperate.]

John and his legal team would most likely fall back on that old old saw they've been harping on for years (pardon the mixed metaphor -- maybe it's a musical saw), the well worn intruder theory. This theory has taken quite a battering of late, especially since lead investigator James Kolar shredded it piece by piece in his new book, taking special aim at the absurdities of Lou Smit's notorious Power Point presentation. I've thoroughly debunked it in this blog as well, for example here, and here. There is no version of the intruder theory that is credible. End of story.

While none of the above will discourage team Ramsey from dredging up every single questionable, inconclusive, pointless and misleading bit of "intruder evidence" they've managed to concoct over the years, the centerpiece will inevitably be the famous "touch DNA" that inspired DA Mary Lacy to officially exonerate "the Ramseys" some years ago. As clearly demonstrated by Kolar, Lacy's assessment was both uncalled for and irresponsible. As I wrote in an earlier post,

The bottom line for me is that a real intruder would have left all sorts
of evidence, including DNA -- it would have been present in abundance
and esoteric means would not have been necessary to retrieve it. For
Kolar, the decisive factor is his revelation that six different DNA
profiles were retrieved from the victim's clothing. Does that tell us
that there were six attackers? He doesn't think so, and neither do I.
What it tells us is that there are all sorts of ways DNA can innocently
attach itself to anyone at any time for all sorts of reasons.

Fortunately, no District Attorney has the legal power to exonerate anyone. Only a jury may deliver a binding verdict of "not guilty." While the defense could call Lacy to the stand as a character witness, she is not a DNA expert, and not in a position to offer an opinion on such a technical matter. The defense would most certainly call DNA experts to testify as to the significance of this evidence, but the prosecution would call experts of its own -- who'd have no problem reminding the jury of the difference between evidence and the interpretation of such evidence, adding that "touch" DNA is particularly difficult to interpret.

One of the most striking developments in forensic DNA testing in recent years is the testing
of ever smaller biological samples. Whereas the original DNA tests required a fairly
large amount (i.e. a blood stain the size of a dime) of biological material to get a result,
current DNA tests are so sensitive that they can type the DNA found in samples containing
only a few cells. There is likely to be enough of your DNA on the magazine you are
reading right now for your DNA profile to be determined by a crime lab.

The increasing sensitivity of DNA tests has affected the nature of criminal investigations
and has created a new class of DNA evidence. Analysts talk of detecting “trace DNA,”
such as the minute quantities of DNA transferred through skin contact. DNA typing is
currently being applied, with varying degrees of success, to samples such as doorbells
pressed in home invasion cases, eyeglasses found at a crime scene, handles of knives
and other weapons, soda straws, and even single fingerprints.

These developments will bring more DNA evidence to court in a wider variety of cases
and may well open new lines of defense. A key issue will be the potential for inadvertent
transfer of small amounts of DNA from one item to another, a process that could easily
incriminate an innocent person. [My emphasis.] Studies have documented the presence of typeable quantities
of human DNA on doorknobs, coffee cups and other common items. Studies have
also documented the inadvertent transfer of human DNA from one item to another. Primary transfer occurs when DNA transferred from a person to an item. Secondary
transfer is when the DNA deposited on one item is transferred to a second item. Tertiary
transfer is when the DNA on the second item is, in turn, transferred to a third.

The authors cite a particular case in which tertiary transfer was established, "a good example of how the amazing sensitivity of contemporary DNA profiling methods facilitate a plausible explanation for what might at first seem to be a damning DNA test result."

Neither Lou Smit's Power Point nor Mary Lacy's "touch DNA" will be enough to counter either expert testimony of this sort or the absurdities of any possible intruder theory. When coupled with all the evidence that John lied, prevaricated and misled on so many occasions, the evidence of guilt will be overwhelming.

So what will be the verdict? This case has taken so many unexpected twists and turns over the last sixteen years, one hardly knows what to expect. But first things first. Let's put John Ramsey on trial, let him defend himself before a jury of his peers. And if he's innocent, he'll have every opportunity to explain why he's behaved in such a suspicious and even outrageous manner all these years.

11 comments:

Not sure why there would be any plea bargain. A "lighter sentence" implies the possibility of conviction, and I think that's very slim.

First, JR doesn't have to prove his defense, the prosecution has to prove their case, so "the dog ate my homework" isn't really a problem, and they needn't resort to it unless the jury isn't buying the intruder theory. And I think the jury would eat up intruder theory.

The possibility of tertiary transfer of touch dna doesn't mean the dna couldn't have come from the killer, directly. A point JR's lawyers are sure to make. Just because tertiary transfer can be detected doesn't mean every dna sample is teritary. Additionally, several examples of artifact dna are just going to make the jury more likely to have reasonable doubt.

The exoneration should never have happened, but it did, and ML was a prosecutor (well, technically) so LW will be sure to make much of this. Prosecuting a man that the former DA exonerated, and doing so with no new evidence isn't going to look good.

Then there is the old standby - half the jurors are not going to be able to "imagine" a parent doing these things to his child. It had to be the boogey man.

There was no indictment last time around, all those years ago. I don't think there is much chance of one now. We don't really have to guess what would happen at trial until we get past the indictment stage.

"Not sure why there would be any plea bargain. A "lighter sentence" implies the possibility of conviction, and I think that's very slim."

A plea bargain would be in order only if John's legal team became convinced the intruder theory could no longer work for them. If they've been reading this blog, they may already be getting a queasy feeling deep down at the pit of their stomaches. :-)

"First, JR doesn't have to prove his defense, the prosecution has to prove their case, so "the dog ate my homework" isn't really a problem, and they needn't resort to it"

If your defense is based on someone else's guilt, then you certainly do have burden of proof, no question. Because that person is innocent until proven guilty. So John could not simply point the finger at his deceased wife, he'd have to prove she did it. Not that he's likely to try, because itwould totally destroy his credibility -- no one would believe anything he said from then on.

"unless the jury isn't buying the intruder theory. And I think the jury would eat up intruder theory."

Not if it was properly presented. If it's just a matter of intruder vs. John Ramsey in the abstract, then sure, reasonable doubt would be a factor. But when you have clear evidence all doors were locked, no sign of forced breakin, everyone with a key investigated, then sorry it does NOT sound like an intruder. The prosecution would then go on to explain how unlikely it is that any intruder would have done what was done, including writing a note in-house, hiding the body, etc. And a good prosecutor would also explain very clearly to the jury what is meant by the term "red herring" and how the notorious "touch DNA" is exactly that, along with the stun gun and all the other meaningless junk.

And on top of that how hard would it be to convince a jury that John lied when his lies are so obvious? I've had a great many people comment on this blog and not one has come to the defense of his window breakin story, no one but the most diehard Ramsey defender believes it.

Yes, the Ramseys were "exonerated," but it's important to remember that a good prosecutor will be sure to exclude from the jury anyone who's been following the case, as they could be biased. The defense would probably want to go along with that. And a good prosecutor would also petition the judge to exclude any reference to the "exoneration" as prejudicial. If the judge goes along, and I don't see any reason why he or she wouldn't, then the jury would never hear about this "exoneration" and it won't be a factor.

The DNA evidence is only as strong as the expert testimony will make it, and the prosecution will certainly have experts of its own to testify as to its weakness in this particular case.

"Then there is the old standby - half the jurors are not going to be able to "imagine" a parent doing these things to his child. It had to be the boogey man."

There are a great many precedents for father-daughter incest, even in the "best" homes, and many cases where fathers murdered their children. Far too many, very sadly. There are also many cases where people known as upstanding citizens turned out to be monstrous serial killers, much to the disbelief of their closest friends and family. No good prosecutor would allow a jury to forget such cases.

There was no indictment last time round because the DA was confused as to who did what and was obviously not convinced of Patsy's involvement. That is no longer an issue, so there is no longer any reason not to proceed.

*From the expert Detective on the Ramsey case - *CNN TRANSCRIPTS with LOU SMIT on Larry King Live May 28, 2001:

“The person I see doing this is a very vicious, brutal criminal, perhaps a sadistic pedophile. Never recorded history where a family member -- a mother or a father has garroted their child. Child strangulation is very rare. Usually when a person is involved in the death of their child, the child is hit on the head or pushed into something, to take -- to take a piece of rope, fashion a garrote, put it on the child's neck, she is definitely struggling at the time that this is put on the neck, there are fingernail marks in her neck, which suggest very strongly, that she was awake, when this happened. But what I see in this crime is not an accidental murder. This is not a little doink on the head, and I think I killed my daughter, so I'm go going into this massive staging. I see a brutal first-degree murder. I see a very violent death of JonBenet. I see someone fashioning a garrote and putting it around her neck. I see someone tightening that garrote to control her. I see someone taking that handle and pulling it very violently tight and killing her. Whoever killed JonBenet is a criminal who knows these things. There is nothing in the background of the Ramseys to indicate any type of psychological problems, any type of anger that would be directed toward their daughter. There is just no background which suggests that the Ramseys would even know how to do these things.”

At a certain point, Lou Smit turned into an advocate, rather than an impartial investigator, and from that point on his version of what happened is tainted by his clear advocacy on behalf of "the Ramseys." The above quote resembles the sort of defense a lawyer would present, not the careful sifting of evidence we expect from a detective. Smit's version of what happened does not stand up to scrutiny, as evidenced in Kolar's book and also in many earlier discussions of the case as presented in various Internet forums. For my own take on Smit, see the following blog post: http://solvingjonbenet.blogspot.com/2012/07/the-lou-smit-show.html

You are mistaken in thinking that JR would have to prove PR's guilt to use "PR did it" as a defense. The defense never has to actually prove anything. They only have to create doubt. If the jury thinks PR might have done it, even though it hasn't been proven beyond a reasonable doubt, that's all JR needs. If PR might have done it, then JR might not have. Acquittal time.

I also believe you are putting too much stock in "credibility". There is really no problem with JR using the "PR did it" strategy. She's not alive, she can't go to jail. JR doesn't look like a little kid blaming a sibling for something, he looks like a man that took on enormous risk to keep his wife out of prison.

I think you are greatly underestimating how appealing the boogey man intruder theory is for jurors.

"You are mistaken in thinking that JR would have to prove PR's guilt to use "PR did it" as a defense. The defense never has to actually prove anything. They only have to create doubt. If the jury thinks PR might have done it, even though it hasn't been proven beyond a reasonable doubt, that's all JR needs. If PR might have done it, then JR might not have. Acquittal time."

Since Patsy's gone and can't be tried, you do have a point. If she were alive she could contest the accusation, but in this case she can't and so reasonable doubt could be argued, yes. But that doesn't mean the jury has to buy it. And as far as a Grand Jury is concerned, reasonable doubt doesn't apply, only Probable Cause.

I want to see John put on trial, i.e., I want to give him the opportunity to plead his case in a court of law, where legal standards, rather than the standards of his own attorneys, would apply. If I were the prosecutor I feel sure I could exonerate Patsy beyond reasonable doubt. However, I see no way to prove Burke could not have struck the initial blow with John covering for him, so I'd be interested to learn whether or not John would want to make such a case. Unlike Patsy, however, Burke is alive, and in a position to defend himself.

"I think you are greatly underestimating how appealing the boogey man intruder theory is for jurors."

Ask Pastor Bob Enyart of Denver Bible Church, he knows. He wrote all about the Clues That Break the Case on his conspiracy website, ShadowGov.com. In great detail, Pastor Bob SCREAMS who is guilty of murdering JonBenet...The answer is there in the ransom note, you just have to know the riddles he writes and how to read in-between the lines! - Bob Enyart has the keys to the puzzle - Just ask him, he is "DEAD SERIOUS " about his brilliant plan to stop those dangerous child-killers in America. BE PREPARED!

As expert Detective Lou Smit said: "The person I see doing this is a very vicious, brutal criminal, perhaps a sadistic pedophile."

"...If the whole truth could be discerned, it would explain every piece of evidence, because real events produced every bit of the crime scene. Sometimes, a single key opens many doors, and one piece pulls the puzzle together. JonBenet’s murderer inadvertently put the key piece of evidence into the ransom note...

Prosecutors often fail to convict parents who murder a child, because most people cannot even imagine committing such a crime. Sadly, however, Susan Smith drowned her two young boys, just as thousands of parents have murdered their own children, and countless fathers have molested their daughters. Such brutality does happen, and society’s mindset disregarding such behavior results in more victims..."

Thanks, Dani, for the link to this interesting analysis. Many of the initial observations and comments make sense. But at a certain point this person veers off into a completely subjective description of what he thinks happened, based on little more than personal fantasy. Ultimately what we have is yet another version of the ever popular "Partners in Crime" scenario, as described in one of my Fantastic Theories posts: http://solvingjonbenet.blogspot.com/2012/08/fantastic-theories-part-three.html

I've read a great many variations on this same basic theme and none are consistent with the evidence.

The Year was 1996 - That was a busy year for the long time, trespassing criminal Bob who HATES the US government justice system & thinks he's WAY above the law due to his brilliance! Hey Bobby boy, speaking of being busy in 1996, where were you and your dark dangerous ShadowGov soldiers at around Christmas-time that year? Do you happen to remember what unlikely events became possible that day? Bet you do, Bob - You are the ShadowLurker, afterall!

By coincidence, was your gang-bag posse of righteous bad cats up in Boulder, CO doing one of your infamous holiday home visits Christmas Day protesting those wicked child-killers, like the late-term abortionist, Dr. Warren Hern? Ya know - Doug McBurney & deputy Gordon Carroll - what were they up to that day? I know ShadowGov buddy, Ken Scott had just got done with a lengthy court battle against Dr. Hern the year before and you all wanted to make a bold statement about people who get away with MURDERING INNOCENT CHILDREN! We know Bob didn't have custody of his kids that day, since he likes to brutally beat small children, so surely he didn't have any other family obligations to attend to, right?

-------------

Fascinating NEW technology - "TOUCH DNA" - Any sadistic pervo who rapes & murders children should definitely be swiftly & painfully executed according to God's enduring command, "Do Not Murder" - If only we would "Judge Rightly" and put an end to these unthinkable crimes! *NOW - we can catch all those BAD CATS out there who thought their brilliant strategy would be fail proof - but they forgot that DNA is the "Proof" - Do Wrong & Risk the Consequences....YOU FAILED AGAIN, BOB ENYART!

TOUCH DNA CLEARS RAMSEYS of murdering JonBenet - But the DNA did match an unidentified MALE as an intruder - Watch => http://youtu.be/jvMcfMHsJY4

Also toward the end of the following post: http://solvingjonbenet.blogspot.com/2012/09/the-defense.html

The video on the link you provided is a perfect example of how dubious evidence can be spun into something that seems iron-clad, because it is "scientific." Touch DNA is scientific for sure, since the technology for detecting it is based on scientific research. But the assumption that it must have originated with JonBenet's attacker is completely unscientific.

If her attacker hadn't been wearing gloves, his DNA would have been all over the place and this esoteric technique would not have been necessary. And if he HAD been wearing gloves, there'd be no "touch" DNA at all. The bottom line is that such a method is likely to produce "touch" DNA from literally any person with whom the subject or his/her clothing had been in contact.

Read what Kolar has to say on this topic in his book before jumping to conclusions.

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I just learned the other day of a new book on a case once labeled, "the crime of the century," but now almost completely forgotten. The title: Foreign Faction: Who Really Kidnapped JonBenet? The author: James Kolar, a lead investigator during the reign of DA Mary Lacy, who famously exonerated John and Patsy Ramsey on the basis of a few miniscule fragments of so-called "intruder DNA." Thankfully, Kolar is not among those convinced by that very dubious "evidence." On the contrary, according to an excellent review,New Clues in JonBenet Ramsey Murder, recently published in the Daily Beast, Kolar's book presents strong evidence against the intruder theory -- implying, of course, that the murder was an inside job. I agree.

The publication of this new book, which I promptly ordered as soon as I found out about it, has prompted me, in spite of many misgivings, to once again plunge into the fray of this case, which for too many years, back in the late 90's and early 00's, as a regular poster on several Internet forums, occupied far too much of my attention and proved an endless source of frustration and annoyance, not only to me, but most of my fellow iSleuths. My problem was that I had solved it.